Disciplinary Hearing Unfairness

[OLSMEDSA]

Hi Laura ,
I am new to the forum ,however my two cents for what its worth . The procedure seems a bit iffy at best . Can you tell me the following:
1) Did your notice of hearing provide you with the option to appoint a fellow employee or outside rep to assist?
2) Obviously the company has checks and balance in place when payments are made. Is this contained in written format or just determined by past practice?

Another issue is if you never gained any monetary benefit from the payments then surely the dismissal should not be for dishonesty but rather incompetency /inability to do the work . I suspect such a dismissal would be hard to justify without showing interventions by the company to help you improve . Make sure the proceedings are transcribed and approach the CCMA and get a ruling on both procedural and substantive fairness of the dismissal.

Hope this helps
Arthur

The above does not constitute nor can it replace legal advice from competent counsel

[Laura7]

Thank you. They asked me if I had representation but I told them there was no one suitable within the company and would represent my self as external representation was not allowed.
They did not ask or allow me to bring in a witness.
What bothers me most is that I was dismissed during the hearing. I thought that the chairman would take some time to consider all the facts and delay the action for a day or so. I also thought that it was strange that he asked me when I joined the company and if I had anything to say after I was dismissed.

[Justloadit]

I am sorry to hear of the outcome.
I think the intention to dismiss you was already decided long before they even decided on the hearing, and the hearing was a means of a way to make it sound official.

I suggest that you approach the CCMA immediately, or if you can afford it, get a labour attorney to fight your case.

[Greig Whitton]

I suggest that you approach the CCMA immediately, or if you can afford it, get a labour attorney to fight your case.

Agreed. Sounds like an open-and-shut unfair dismissal case to me.

[roryf]

As an Employer,I would not like to fight this case at CCMA.The company did not follow proper procedure and will not win at CCMA.

Good luck.

[Citizen X]

Thank you. They asked me if I had representation but I told them there was no one suitable within the company and would represent my self as external representation was not allowed.
They did not ask or allow me to bring in a witness.

What bothers me most is that I was dismissed during the hearing. I thought that the chairman would take some time to consider all the facts and delay the action for a day or so. I also thought that it was strange that he asked me when I joined the company and if I had anything to say after I was dismissed.

Hi Laura,

I think that you can approach the CCMA confidently on the basis that the dismissal was both substantively unfair and procedurally unfair (not for a fair reason following a fair procedure), for the simple fact that you were acting in an official capacity and carrying out instructions issued to you by a manager who is superior to you in designation. The underlying circumstances are important and this is the transition the company was going through.
The company (respondent) will have to prove to the CCMA that the dismissal was both substantively fair and procedurally fair (Fair reason with a fair procedure).
Though I haven’t seen the findings letter, many employers fail the substantive fairness test because they fail to do consider item 7 of Schedule 8 of the Labour Relations Act 66 of 1995(LRA)

This is what item 7 requires
7. Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider -

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace(Comment: what rule or standard did you really contravene? Is there really a rule or standard which states that in your capacity you were not allowed to authorise those payments under instructions from management?); and

(b) if a rule or standard was contravened, whether or not -

(i) the rule was a valid or reasonable rule or standard(Comment: I don’t think that the rule or standard is reasonable as you were acting on instructions);

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard(Comment: Here I think you’ll agree that you were unaware that you were prohibited from engaging in the activity which you did);

(iii) the rule or standard has been consistently applied by the employer(Comment: was the manager who issued you with the instruction also subject to disciplinary action); and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard(Comment: I don’t think that dismissal was an appropriate sanction as you didn’t act in a malicious and culpable manner)

Procedural fairness: You have a right to call witnesses, that fact that you were precluded from doing so is already a prima facie case for procedural unfairness.

[Laura7]

Thank you Vanash Naik, I have made a note of your reply and agree the entire hearing was flawed. I think the chairman played a more active role than a passive role.
Can I ask you another question. Company A, suspended me and dismissed me. However, during all my years of employment, my scope of work included working for 2 other companies and each paid me a small salary. I received 3 payslips each month. These 2 companies were mentioned in my contract and the old director had a vested interest in both. When I was suspended by company A, I was allowed to continue working for the other companies and when I was dismissed, I was dismissed from all three companies. The new owner of company A does not have any interests in the other two companies.

[Citizen X]

Thank you Vanash Naik, I have made a note of your reply and agree the entire hearing was flawed. I think the chairman played a more active role than a passive role.
Can I ask you another question. Company A, suspended me and dismissed me. However, during all my years of employment, my scope of work included working for 2 other companies and each paid me a small salary. I received 3 payslips each month. These 2 companies were mentioned in my contract and the old director had a vested interest in both. When I was suspended by company A, I was allowed to continue working for the other companies and when I was dismissed, I was dismissed from all three companies. The new owner of company A does not have any interests in the other two companies.

I’m assuming that all 3 companies are private companies i.e Pty Ltd’s. If this is the case each one is a juristic person oe legal person, that each is a company itself and as such a separate legal person.

To illustrate, there is ABC (Pty) Ltd, DEF(Pty) Ltd and GHI (Pty) Ltd. Assuming that the misconduct took place involving strictly and only the authorising of certain payments for ABC(Pty) Ltd, then the two other entities have no grounds to take disciplinary action against you. This is so as no misconduct or alleged misconduct by you took place in one of these three companies and not at all three.
The evidence that you have is that three different companies furnish you with three different payslips.

[Laura7]

Thank you, yes all three companies are a (Pty) Ltd. Therefore do I submit a CCMA claim for the other two companies on the basis that it was an unfair dismissal.

[Entropy Group]

I would think that you should register disputes with all three companies. If your unfair dismissal claim against company A succeeds, then the other two would also stand. If you fail with A, the other two still had no grounds for dismissal, i.e. substantive and procedural unfair practise. Remember you have 30 days from dismissal to register your dispute.